KINGSTONIAN FOOTBALL CLUB LTD v MISS J CUMMINS [1999] UKEAT 1130_98_2110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1130_98_2110Case No Appeal No. EAT/1130/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
KINGSTONIAN FOOTBALL CLUB LTDAPPELLANTMISS J CUMMINSRESPONDENT
Before
His Honour Judge J HicksLord Gladwin of CleeDate 21 October 1999
[1]APPEARANCES For the Appellants MISS J RUBENS (of Counsel) Instructed By: Ms T Neuhoff Messrs Beller & Co Solicitors 43 Portland Place London W1N 3AG For the Respondent MR S GARDINER (of Counsel) Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ JUDGE J HICKS QC : The Respondent, Miss Cummins, began to work for the Appellants, Kingstonian Football Club Ltd, on 18 August 1997. She was employed as an Office Administrator until she was dismissed and it was her complaint to the Employment Tribunal that the reason for her dismissal was that she had complained of sexual harassment by one of the persons for whom the club was responsible. The Tribunal found that her complaints, both of the harassment itself and of victimisation in the form of the dismissal because of her complaint, were proved and there is no appeal against those findings.[2]The Tribunal then dealt with compensation and reached various conclusions, and against three of its findings the Appellant sought to appeal and, indeed, gave Notice of Appeal. In the amended form of that Notice of Appeal which was before this Tribunal, differently constituted at a preliminary hearing, there were three grounds. The first was that:
"a. The tribunal failed to give reasons for its finding that the Respondent's income was £80 per week for the calculation of the Respondent's differential loss of earnings. In any event, there was no evidence before the tribunal to support such a finding. The tribunal accordingly erred in law in finding that the Respondent's loss of earnings amounted to £150.76 per week for 40 weeks."
It is quite plain that that ground of appeal went only to the amount of the credit per week to be given for earnings against the loss. The gross rate of loss before deduction is not appealed nor is the period of 40 weeks.[3]Ground (b) is that:
"b. The tribunal's finding that the Respondent reasonably mitigated her loss was perverse in light of the Respondent's evidence that she was able to earn £50 - £130 per day as an electrolysis consultant, but only worked one day a week. … "
And then effectively the allegation of perversity is repeated in different words.[4]Ground (c) concerns the award of £3,500 for injury to feelings.[5]The matter came before this Tribunal on a preliminary hearing and the order following that preliminary hearing was, so far as material, that the appeal proceed to a full hearing limited solely to the issue of the weekly earnings of the Respondents in accordance with the judgment of the Employment Appeal Tribunal. So, although that is a reference to weekly earnings, one must look at the judgment to see what is really covered and in the judgment, Judge Pugsley, on behalf of himself, Ms Switzer and Mrs Vickers first dealt with the question of injury to feelings, the subject matter of item (c) in the grounds of appeal, and came to the conclusion that there was no arguable point of law there. They then came to what they called "the claim in respect of the financial compensation that arises out of the fact that the Applicant was dismissed". The Tribunal, they say, dealt with this matter in paragraph 33 onwards and they then set out the terms of paragraphs 33, 34 and 35 of the Tribunal's decision, starting in fact at the second sentence of paragraph 33 and, in summary, what the Tribunal finds in those three paragraphs is, first, that it was reasonable and understandable for Miss Cummins to decide to go back to a more freelance type of employment with her specialist skill as an electrolysis. Secondly there is a finding that she had reasonably mitigated her loss in the form of employment which she obtained and they take into account, in particular, her difficult arrangements for child care. Thirdly they deal with a point made by the Respondents that, in any event, she did not have a secure future at the club, and presumably therefore the earnings figure before deductions for outside earnings should have been reduced. All those are rejected and it seems fairly clear in the context that the middle of those points, the paragraph 34 point, included the question whether one day a week was reasonable in the circumstances, that being the subject matter of item (b) of the grounds of appeal.[6]The Employment Appeal Tribunal then go on to say that there is one area, and one area alone, where they considered that the arguments raised some arguable issue. They repeat that there can be no criticism for awarding five weeks of employment pay. They repeat that there can be no criticism of giving a further 40 weeks to find alternative employment and they finally say this:
"The only area where we think there is an arguable issue is that the Tribunal seem to have adopted a fairly rough and ready method … in that they have attributed £80 as her earnings and given, for those 40 weeks, a total of £150.76 net loss, which at 40 weeks comes to a sum of £6,030.40. As to that matter, we consider an arguable issue is raised …"
And a little later they further develop precisely what point they are concerned with by saying:
"But we are concerned as to the imputation of the figure at quite that level of £80 for a period of 40 weeks in the absence of evidence as to it. Therefore, as far as that is concerned, we make an order for Chairman's Notes, limited solely to the question of the evidence of her earnings of £80 for the 40 week period. That is the only arguable matter: whether a Tribunal is entitled to such a broad brush approach. All other matters, in our view, are not arguable."
[7]In response to that direction the Chairman replied that (as indeed it would seem was clear at the preliminary hearing) Miss Cummins' written witness statement had referred to a bracket of £50 to £130 per week, but the Chairman goes on to say, having quoted from that statement (which is indeed expressed as £50 to £130 per day but, of course, became a weekly amount by the Tribunal's findings that it was reasonable for her to work only one day a week):
"The only reference which is within my written notes as to the Applicant's oral evidence on the quantum of her earnings are the words:- '£80 gross per week – 33 weeks'."
[8]The employers today are not represented by Counsel who appeared for them at that Tribunal and we have no knowledge of what was in that Counsel's note. Mr Gardiner, who appears for Miss Cummins, was present below and his note agrees with the Chairman's in containing a reference in the course of oral evidence to £80 per week. Neither note, as we understand it, records the question which was being answered, but it does seem highly likely that the question must have been something of the order of "what was the average" or "what would be normal", since Miss Cummins had already in her written witness statement given the bracket of £50 to £130. That therefore was the evidence before the Tribunal.[9]Miss Rubens for the Appellants says that on that basis they could not, and should not, have arrived at a finding of £80 per week. She points to the fact that there was no written confirmation of that in the form of diary records of days working, tax records of earnings returned or anything of that kind, but she is unable to say that the employers had made any application for discovery of such documents.[10]Mr Gardiner tells us that the evidence as to £80 per week and indeed the whole of the evidence about this point which was very short, the £50 to £130 in the statement and the £80 per week orally, was not challenged in cross-examination and we therefore have to ask ourselves "what error of law did the Tribunal fall into?". The submission by Miss Rubens seems to be that they should have made no finding at all about this deduction, but it was their duty to arrive at a figure for the weekly loss. They had on evidence (and it is not challenged that they were entitled to do this) arrived at the figure which she would have earned and was therefore losing, subject to whatever credit she should give for earnings received. They had arrived at the period for which the loss continued (and that is not challenged as a period). What remained was to decide how much credit should be given for her earning or earnings capacity and they had to reach a conclusion on the evidence before them. It boots nothing to say that the onus was on Miss Cummings. Of course it was, but she had given evidence. It may have been very scanty evidence, but it was evidence and the Tribunal made a finding of fact. The question of onus therefore did not enter into the question at all. It was not that the Tribunal on this point had had no evidence. It was not that the Tribunal on this point was unable to reach a finding on the evidence it had had because there were competing contentions or competing evidence on both sides which it found itself unable to decide between. There was no evidence on the other side and the Tribunal did reach a finding of fact. We can see no error of law in their doing so and we are quite clear that there was evidence, albeit not extensive, on which they could reach that finding.[11]Miss Rubens seeks to extend the ambit of the appeal in various ways, some of them are plainly excluded by the decision at the preliminary hearing. The one which might arguably be an exception to that is the question "whether it was reasonable for Miss Cummins to work only one day a week". Our belief is that, when one reads the amended Notice of Appeal and compares that with the judgment of this Employment Appeal Tribunal on the preliminary hearing, they must have been intending to exclude that. But even assuming in the Appellants' favour that that is wrong and that the question of rate per week is open, not only as to the daily figure but as to the number of days, we see no ground on which the decision below can be said to be in error of law. The only ground advanced by Miss Rubens is that it was perverse. Whether it is a conclusion that we would have reached is not the question, and indeed we see the force of the argument that that was perhaps a finding that other tribunals might well not have reached, but to be perverse it must be a finding which no reasonable tribunal, on the evidence before it and properly directing itself as to the law, could have reached, and we are not able to say that it was perverse in that sense. Even therefore if that is a point that is open to the Appellants, which we believe it is not, it is not one on which they can succeed.[12]For those reasons the appeal is dismissed.